Recent cases alertMiao v The Queen [2017] NSWCCA 89 — sentencing judge not in error by not applying Fedele v The Queen [2015] NSWCCA 286 or imposing ICO as custodial sentence properly reflected applicable sentencing factors and length of sentence product of degree of accumulation which ruled out availability of alternatives to custodial sentence.
*Guidance from these cases has not yet been incorporated into the commentary

1. Overview

Section 20AB makes available to courts sentencing federal offenders certain state and territory home sentencing options. These include options specifically listed in s 20AB(1AA), and similar sentences or orders to those listed. 1

2.1 Options not available under s 20AB

Sentencing alternatives other than those listed above are not available, and a sentence or order under s 20AB can only be imposed following conviction. 3

For a minimum non-parole offence mentioned in s 19AG, a court is not permitted to pass a sentence or make an order under s 20AB(1) that involves detention or imprisonment: s 20AB(6). The s 19AG(1) minimum non-parole offences are:

[A] question of degree, which must be considered in the context of the legislation as a whole, and in particular Pt 1B, and in the light of the legislative purpose to extend sentencing options.

In that case, the Court found that there is a requirement of finality for orders made under s 20AB. The Court found that the interim or provisional nature of an Intensive Drug Rehabilitation Order (‘IDRO’) meant that an IDRO did not fall within the meaning of a ‘similar sentence or order’ in s 20AB. However, DPP (Cth) v Costanzo [2005] QSC 79 was decided before amendments to s 20AB made in November 2015. 5 These amendments made a ‘drug or alcohol treatment order or rehabilitation order’ available as a listed sentencing option under s 20AB. Whether an IDRO would now be considered a ‘similar sentence or order’ is untested.

3. Extent of application of state and territory laws

3.1 Inconsistency with federal legislation

Under s 20AB(3), where a sentence or order is made under s 20AB(1), the state or territory laws with regard to that sentencing option apply, so far as they are capable of application and are not inconsistent with the laws of the Commonwealth.

For example, under Victorian law, a Community Correction Order can be imposed following a finding of guilt only, without a conviction being recorded against the offender. 6 However, under the Crimes Act 1914 (Cth) conditional release is the only option available to the court, other than outright dismissal of the charges, where a conviction is not recorded: see Options Without Proceeding to Conviction.7

3.2 The Effect of s 20AB(1A)

Section 20AB(1A) provides that a court imposing a sentence or order under s 20AB(1) is not required to apply state and territory laws that require the making of another order before such a sentence can be imposed.

For example, in New South Wales, prior to amendments made to the Crimes (Sentencing Procedure) Act 1999 (NSW) on 1 October 2010, a court could order that a sentence of imprisonment be served by way of periodic detention. In order to do so, the court had to first pass a sentence of imprisonment and then order that it be served by way of periodic detention. The operation of s 20AB(1A) of the Crimes Act 1914 (Cth) meant that when sentencing a federal offender, the court could directly impose periodic detention upon a federal offender. 8 The Court explained in R v Togias [2002] NSWCCA 363,[23]:

[Section] 20AB(1A) of the Crimes Act (Cth) meant that the Court did not have to find first that three years was an appropriate sentence: it could consider all sentencing options, and if it considered three years periodic detention the best option, it could directly impose that sentence.

Note: periodic detention ceased to be an available sentencing option under NSW law on 1 October 2010. 9

4. Options available in the states and territories

Intensive Correction Orders are listed as an available option in s 20AB(1AA)(a)(ix). Intensive Correction Orders are available as sentencing options in Queensland, 10New South Wales, 11 and the Australian Capital Territory. 12

4.1.1 Principles relevant to imposing Community Correction Orders

4.1.1.1 CCO cannot be combined with term of imprisonment for single federal offence

A CCO may be combined with imprisonment for a single offence under s 44 of the Sentencing Act 1991 (Vic). However, a CCO cannot be combined with a term of imprisonment for a single federal offence. 15 This would be inconsistent with Part IB of the Crimes Act 1914 (Cth), which provides that where a court decides to impose a term of imprisonment inclusive of conditional release in a form other than parole, it must be in the form of a recognizance release order. 16

However, in Atanackovic v The Queen [2015] VSCA 136, the Court found that where the offender is being sentenced for multiple offences, it is possible for a CCO to be imposed for one of the offences and for a term of imprisonment to be imposed for the other offence. 17

4.1.1.2 Guideline judgment in Boulton v The Queen does not apply to federal offences

Boulton cannot be accommodated by s 16A of the Crimes Act 1914 (Cth) and does not satisfy the requirements of s 80 of the Judiciary Act. Accordingly, it does not apply to the sentencing of federal offenders by Victorian courts.

Section 16A(1) of the Crimes Act 1914 (Cth) has been held to set out the primary duty of a sentencing court in sentencing a federal offender. In discharging that duty, the sentencing court must consider whether the sentence to be imposed ‘is of a severity appropriate in all the circumstances of the offence.’ That is a different question to the question posed by the guideline judgment, namely, whether, having regard to the availability of the CCO as a sentencing option, there is ‘any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all its disadvantages, is the only option.’

4.1.1.3 Relevant principles for federal offences

A CCO may not be appropriate in cases of high objective seriousness and where deterrence and denunciation are paramount considerations.

The failure to impose an immediate and substantial period of imprisonment was not in conformity with the prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations. When regard is had to the nature and circumstances of the offending, a CCO was not, in our opinion, a disposition that was reasonably open (footnotes omitted).

4.1.2 Principles relevant to imposing Intensive Correction Orders

In R v Pogson [2012] NSWCCA 225, the Court considered the principles relevant to imposing ICO’s in New South Wales. McClellan CJ and Johnson J (Price, RA Hulme and Button JJ agreeing) stated at [99]-[111]:

There is nothing in s.7 of the Sentencing Procedure Act which confines the imposition of an ICO to persons who have an identified need for rehabilitation, or of whom it can be positively said there is a risk of reoffending. Although obviously more lenient than a sentence of full-time imprisonment, the conditions imposed by an ICO will be an imposition of varying degrees of significance to an offender depending on his or her personal circumstances.

It is apparent that the mandatory conditions may operate to impose significant restrictions on an offender’s freedom. And, of course, a breach of the conditions may result in his or her sentencing regime being altered, including being required to serve the balance of the sentence in full-time custody.

…

An assessment must be made of an offender for the purpose of determining whether an ICO is the appropriate sentence to be selected in the particular case. That process forms part of the sentencing discretion in the context of the particular case.

It should be kept in mind that an ICO is a substantial punishment to be utilised in an appropriate case: Whelan v The Queen [2012] NSWCCA 147 at [120]. However, as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency: Whelan [2012] NSWCCA 147 at [120].

…

However, as we have noted, the stringent conditions attached to an ICO ensure that an offender subject to such an order is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense.

This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson (in the joint judgment of McClellan CJ at CL and myself) point to the breadth of the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is important not to lose sight of the need for an appropriate and proportionate level of punishment, in the form of immediate incarceration, in cases of serious offending. The decision in R v Pogson should not be utilised to pass an entirely inappropriate sentence which sees an offender such as the Respondent, with his magnitude of offending, being dealt with by way of an ICO. Such an approach does not accord with the principle of reasonable proportionality between the offending conduct and sentence and the need for general deterrence with respect to sentencing substantial drug supply offenders (emphasis added).

For example, the NSW Court of Criminal Appeal has indicated that an ICO is unlikely to be an appropriate sentence in cases involving child exploitation. In R v Porte [2015] NSWCCA 174, Johnson J (Beech-Jones J and Leeming JA agreeing) noted at [129]-[131]:

This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225;82 NSWLR 60at 85-87 [112]– [123] (in the joint judgment of McClellan CJ at CL and myself) point to the breadth to the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is necessary not to lose sight of the need for an appropriate level of punishment, in the form of immediate incarceration, in cases of serious child pornography offences such as this.

The decision in R v Pogson; R v Lapham; R v Martin should not be utilised to pass an entirely inappropriate sentence, which sees an offender such as the Respondent with his magnitude of offending, being dealt with by way of an ICO.

To proceed by way of an ICO in this case meant that concepts of general deterrence and denunciation “slip through almost without trace”: D’Alessandro [2010] VSCA 60; 26 VR 477 at 484 [24].

However, in Fedele v The Queen [2015] NSWCCA 286, a case involving child exploitation, the Court found that the sentencing judge had erred in failing to consider whether an ICO was an appropriate sentencing disposition. The immediate custodial sentence imposed was replaced by an ICO, given the objective seriousness of the offences were low, the offender was aged between 19 and 22 at the time of offending and had strong prospects of rehabilitation. 18

In consideration of the requirement to take various sentencing considerations into account in determining an appropriate federal sentence (see s 16A(2)), Hall J noted in R v Dalzell [2011] NSWSC 454, [159]:

I accept that, in many cases, [an ICO] would not be appropriate in respect of insider trading offences. However, as important as is the principle of general deterrence in sentencing for such offences, there is a statutory requirement for a full consideration of the nature and the circumstances of the offence: s.16A(2). It is to be borne in mind that a term of imprisonment rather than a bond served under an Intensive Correction Order is a significant sentence, in my view, more onerous than a suspended sentence.

In R v Glynatsis [2013] NSWCCA 131, [74] the Court held that the imposition of an ICO on an offender convicted of nine insider trading offences did not adequately meet the need for general deterrence. 20

4.1.3 Principles relevant to imposing Intensive Supervision Orders

An ISO may not be appropriate in cases of high objective seriousness and where deterrence and denunciation are paramount considerations. For example, in R v Leask [2013] WASCA 243, the sentencing judge imposed an ISO on the offender as a condition of recognizance pursuant to s 20(1) of the Crimes Act 1914 (Cth).21 The Court stated that it would have imposed an immediate custodial sentence due to the ‘seriousness of the offending and the need for general deterrence’. 22 However, the Court dismissed the Crown appeal against sentence, noting at [97]:

[I]f I had sentenced the respondent at first instance I would probably have ordered him to serve some of the sentence in prison. His Honour’s decision to release the respondent immediately was a lenient, some would say a very lenient, disposition. However, I have not been persuaded that his Honour’s decision was erroneous, particularly having regard to the respondent’s age, immaturity, naivety and mental state at the time he committed the offences. These factors very much reduced the respondent’s appreciation of the inappropriateness of what he had done and diminished his culpability. His Honour’s order, which included supervision and community work, was carefully crafted to the respondent’s particular circumstances (emphasis added).

In Naysmith v The Queen [2013] WASCA 32, the Court allowed an appeal against an immediate custodial sentence of 12 months imposed for offences involving child exploitation and imposed instead an Intensive Supervision Order. The Court noted at [25]-[27]:

[I]f it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence: Collins v The State of Western Australia[2007] WASCA 108 [21].

The appellant’s intellectual disability is such as to require that little weight be given to general deterrence, particularly as his disability was accompanied by significant social and environmental deprivation. Against that background, it was also significant that at the time of sentencing the appellant was receiving, and would continue to receive, a high level of external support. The unusual circumstances of this case bring the appellant within the exceptional category in which a term of imprisonment was not an appropriate sentencing option.

…. In all of the circumstances, a 9-month intensive supervision order with program and supervision requirements was the appropriate sentencing option.

There are also specialist drug courts to which offenders can be referred prior to sentencing in some jurisdictions. For example, in Western Australia the Drug Court is open to some classes of federal offenders, 26 and in South Australia federal offenders may be referred to the Treatment Intervention Court. 27

In New South Wales the Drug Court 28 can impose ‘Compulsory Drug Treatment Detention’. 29 Whether these orders could be imposed on federal offenders is untested.

4.3 Community service orders

Community service orders are listed as an available option in s 20AB(1AA)(a)(v). Community service orders are available in Tasmania, 30Queensland 31 and New South Wales. 32

In South Australia a court is empowered to order that an offender perform ‘community service’. However, the method through which a sentencing court imposes community service is under a suspended sentence or conditional release bond. 33 Sentencing courts in South Australia have imposed community service as a requirement of a bond for federal offenders under s 20(1)(b) of the Crimes Act 1914 (Cth).34 See further: Conditional Release Orders after Conviction.

4.4 Home detention orders

Home detention is not expressly listed in s 20AB. However, home detention orders are available in the Northern Territory 35 and New South Wales36 and these orders are specifically prescribed as options available for federal offenders in reg 6 of the Crimes Regulations 1990 (Cth).

In South Australia, home detention is only available as a condition of suspension. 37 The Court has expressed doubt that this condition could be imposed on an offender as a condition of a recognizance release order under s 20(1)(b).38

8. Breach of s 20AB Sentence or Order

The breach provisions in s 20AC are activated by an offender’s failure without reasonable cause or excuse to comply with the sentence or order: s 20AC(2).Section 20AC does not authorise the court to amend or revoke the order when the offender has a reasonable excuse for experiencing problems with compliance.

A court is not prevented from making an order under s 20AB(1) on the grounds that the action the court may take against a federal offender for failure to comply is, or may be, inconsistent with the action a state or territory court is empowered to take against a state or territory offender for failure to comply: s 20AB(1B).

8.1 Procedure to be followed where there is failure to comply

Procedure relating to the issuing of summons or to the issuing of a warrant for the apprehension of the person for failure to comply with a s 20AB(1) order are detailed in s 20AC(2) – s 20AC(5).

Breach action … must be taken under s 20AC of the Crimes Act, which requires that a summons be issued by a Magistrate requiring a federal offender who is alleged to have breached a sentence so imposed to appear before the sentencing court to be dealt with by imposition of a pecuniary penalty, revocation of the sentence and the re-sentencing of the federal offender. This procedure is said to be required because the adjudication of a breach of a sentencing order involves the exercise of federal judicial power which for federal matters cannot be exercised by a non-judicial body: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2000) at 455; [17.18], 457; [17.23]-[17.24].

8.2 Action that may be taken for failure to comply

Options available to the court when sentencing a person for failure to comply with any condition of a s 20AB(1) order are contained in s 20AC(6).

Where an offender, without reasonable cause or excuse, fails to comply with any requirements of an order made under s 20AB, the court may:

The provisions governing enforcement and recovery of a pecuniary penalty imposed under s 20AC(6)(a) are the same as those which apply to fines imposed following conviction for a federal offence: s 20AC(10). See Fines.

8.3 Factors to be taken into account

Under s 20AC(7), in dealing with an offender for breach of a s 20AB sentence or order, the court shall, in addition to any other matters the court considers relevant, take into account:

the fact that the sentence was passed or the order was made: s 20AC(7)(a); and

8.4 Appeal

Section 20AB applies to participating states and territories, being a state or territory with which the Governor-General has made arrangements for the carrying out or enforcement of orders made under the Crimes Act 1914 (Cth): see s 3B(2).↩

Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [7.117].↩

Section 19AG(1) defines a minimum non-parole offence as ‘(a) an offence against section 24AA; (b) a terrorism offence; (c) an offence against Division 80 or 91 of the Criminal Code’. Terrorism offence is defined in s 3 of the Crimes Act 1914 (Cth).↩